VIKRAM RAIDHAN Vs. BHOVANBHAI MEPABHAI PATEL

JUDGEMENT

(1.) The appellant is the original claimant. He suffered injuries in vehicular accident on 31st August, 1982 around 12:30 p.m. According to the appellant he was passing by Delux talkies situated near Nutan Saurashtra Ice Factory at Kuvadva road in Rajkot. At that time, respondent no. 1 drove the vehicle namely, the motor bike bearing registration no. GTQ 9851 in a rash and negligent manner and dashed it against the appellant. As a result of the same, he sustained injuries on his left leg. He was removed to the hospital, initially to the Government Hospital, but shortly thereafter to the Private Nursing Home of Dr. Pankaj Patel the Orthopedic Surgeon. According to him there was fracture of tibia and fibula and for the treatment he had to remain in the hospital for considerable period. He was operated upon and the injured leg was shortened by one and half inch. According to the appellant, he also experienced difficulty in climbing stairs or lifting weight etc. Hence, he preferred proceedings under the provisions of Motor Vehicles Act for obtaining compensation. Originally the claim was filed for Rs.40,000=00, but subsequently it was raised to Rs. 1 lakh. In the application, the appellant stated the aforesaid facts and also averred that because of the disability suffered by him he was unable to walk properly, do labour work, graze cattle and cultivate field. According to him, the disability was of permanent nature. He has also averred that because of the injury to the head, his memory was adversely affected and consequently he had to give up studies half way. In support of his claim the appellant has produced documentary evidence, including the medical certificate regarding his disability.

(2.) Respondent no. 2 the owner of the offending vehicle contested the claim by filing written statement at Exh. 46. In the said written statement all the averments made by the appellant were denied. It was averred that there was no negligence on the part of respondent no. 1 driver of the offending vehicle and, therefore, the appellant was not entitled to receive any compensation. The respondent insurance company also filed reply at Exh. 48. It was averred that there was no negligence on the part of the offending vehicle and the appellant himself was responsible for the injuries caused to him. The insurance company averred that the driver of the motor bike did not hold valid licence and, therefore, the insurance company was not liable to satisfy the award. Further by submitting an application at Exh. 5, respondent no. 3 made amendment in the written statement and took the ground that respondent no. 2 had played fraud upon the insurance company and the insurance was taken only after the accident. Hence, the insurance company was not at all liable to satisfy the award.

(3.) The parties led oral as well as documentary evidence to substantiate their respective cases. On the basis of the material produced before it, the Claims Tribunal, Rajkot arrived at a conclusion that the accident occurred solely due to rash and negligent act of respondent no. 1. The Tribunal also held that the appellant, at the relevant time was minor and sustained injuries on account of the vehicular accident caused by respondent no. 1 due to his negligent driving. The Tribunal also assessed the compensation payable to the appellant at Rs.26,880=00. The Tribunal therefore, by judgment and award dated 8th April, 1993, awarded compensation of Rs.26,880=00 to the appellant together with 15% interest from the date of petition till realization and proportionate costs. It is this decision which is now challenged in this appeal.